Rapport intérimaire - Rapport No. 187, Novembre 1978

Cas no 893 (Canada) - Date de la plainte: 04-NOV. -77 - Clos

1. 512. The complaint of the Canadian Labour Congress is contained in a communication dated 4 November 1977 and that of the Canadian Association of University Teachers in a communication dated 6 December 1977. These complaints were transmitted to the Government of Canada which in a communication of 4 May 1978 transmitted the observations of the Government of Alberta on the complaints.
2. 513. Canada has ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 514. In its complaint dated 4 November 1977, the Canadian Labour Congress stated that the allegations were based on the enactment by the Government of Alberta of Bill No. 41, known as "the Public Service Employee Relations Act", 1977, Chapter 40. The said Act received royal assent in May 1977 and was promulgated on 22 September 1977. In particular, the complainant organisation stated that the Public Service Employee Relations Act, in section 93, introduces a general prohibition of strikes in the public service under extremely severe penalties. According to this section, "no person shall cause or attempt to cause a strike by the persons to whom this Act applies". Section 95 of the Act adds that "a person who contravenes section 93(l) or section 94(l) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000".
2. 515. The complainant organisation alleged that this kind of general prohibition of strikes is not in harmony with Article 10 of Convention No. 87 since it constitutes a considerable restriction on the opportunities- open to trade unions to further and defend the interests of their members. The complainants added that, in addition, such a limitation is an impairment of Articles 3 and 8 of Convention No. 87.
3. 516. The Canadian Labour Congress also alleged that section 93 of the Act blatantly discriminates between several occupational groups and actually between the same classes of employees. For example, the Alberta Liquor Board employees are totally and generally prohibited from striking but the telephone employees still enjoy the right to strike under the Alberta Labour Act, 1973. In addition, provincial hospital employees are also subject to a general prohibition from striking while their colleagues in municipal hospitals (represented by the same trade union) are free to strike in due course of a dispute settlement procedure. Another example is that teachers in public schools have the right to strike but for the teaching staff in colleges and universities strikes are unlawful.
4. 517. According to the complainant organisation, the Public Service Employee Relations Act also infringes Article 4 of Convention No. 98 in so far as section 48 of the Act excludes from the bargaining scope certain specific matters such as: (a) the organisation of work, the assignment of duties and the determination of the number of employees of an employer; (b) the systems of job evaluation and the allocation of individual jobs and positions in the systems; (c) selection, appointment, promotion, training or transfer; and (d) pensions. These restrictions, alleged the complainants, impose on the freedom of parties to conclude collective agreements and impinge on the voluntary character of bargaining machinery as envisaged in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949.
5. 518. In addition, continued the complainants, as a result of sections 104, 111 and 113 (read in conjunction with schedule 2(l), 2(2), 3(l) and 3(2)) academic staff were deprived of the right to choose whether or not to bargain collectively. In addition, certain numbers of employees in Calgary Children's Hospital and Red Deer College, represented by the Canadian Union of Public Employees, had lost their full bargaining rights under the Labour Relations Act of Alberta, 1973, and the harm to these employees was that they had no right to strike any longer and that their previous full bargaining rights were crippled by section 48 of the Act of 1977.
6. 519. In its complaint of 6 December 1977, the Canadian Association of University Teachers also alleged that the Public Service Employee Relations Act was in direct contravention of Convention No. 87. This complainant organisation alleged specifically that the Act removes their members both from the ambit of the Public Service Employee Relations Act itself as well as from the rights and protection contained in the Alberta Labour Code. In this connection, the complainant organisation referred to subsection 2(l) of the Act which provides that "this Act does not apply to (a) the persons named in the schedule to the extent described in the schedule", and paragraph 2 of the schedule lists "(l) the board of governors of each university under the Universities Act while it is acting as the employer of its academic staff as defined in the Universities Act of each university; (2) the academic staff as defined in the Universities Act of each university". In addition, continued the complainant organisation, section III of the Public Service Employee Relations Act provides "the Universities Act is amended (a) as to section 19 by striking out subsection (5) and substituting the following: (5) the Alberta Labour Act, 1973, does not apply to the board or academic staff".
7. 520. The complainants alleged that this legislation prevented university faculty members from exercising the right to organise if they so wish under the provisions of both the Public Service Employee Relations Act and the Alberta Labour Act. The complainant organisation also suggested that faculty associations were also restricted in organising the administration and formulating their programmes and that the authorities were interfering with the otherwise lawful activities of employees organisations.
8. 521. In its reply to the complaint, the Government of Alberta states that the Public Service Employee Relations Act was assented to on 18 May 1977 and came into force on 22 September 1977. The Act was presented to the provincial legislature for approval since both the Government as employer and the bargaining agent representing government employees recognised that the existing collective bargaining mechanism did little to promote a mutually acceptable bargaining relationship. The legislative framework, explains the Government, governing the existing relationship contained numerous anomalies and involved several statutes which combined to create awkward procedural difficulties and failed to provide both parties with a clearly delineated mechanism for dispute resolutions.
9. 522. The Government continues that prior to the drafting of the legislation a Task Force on Provincial Public Service Labour Relations, a Committee staffed with equal numbers of employer and employee representatives, had carefully examined the very difficult questions associated with public sector collective bargaining. This task force travelled extensively in Canada holding discussions with labour and management officials involved in the public sector collective bargaining experience. In addition, the task force received submissions from groups wishing to make their views known on this particular matter.
10. 523. The task force members, the Government explains, found that although other Canadian Governments had faced equal difficulty with regard to public sector collective bargaining no clearly superior solution had emerged. There was simply no consensus regarding what was the most satisfactory legislative framework or the most effective dispute resolution technique. Although the members of the task force had been able to produce several mutually acceptable recommendations, the general lack of consensus in Canada was reflected in the separate recommendations issued by the two groups which comprised the task force. According to the Government, two predominant needs however did emerge: the legislation ultimately approved would have to consolidate and clarify the legislative framework governing the relationship between the Government of Alberta and its employees and secondly it would have to provide a functional mechanism for dispute resolution. These two needs, among others, according to the Government, have been addressed in the Alberta Public Service Employee Relations Act.
11. 524. The Government states that the integrity and independence of employee bargaining agents is now officially recognised in the Act. The Act further reinforces employee bargaining rights by making it possible for any union to organise provincial public employees. This provision, according to the Government, significantly expands the potential organising scope of many Alberta unions in turn allowing them to further the interests of their present members by expanding organising efforts into these previously inaccessible areas. In addition, by providing specific certification and revocation procedures as well as safeguards with respect to preventing employer involvement in union formation or operation, the Act ensures that employee rights to organise and be represented by an agent of their own choosing will not be abrogated.
12. 525. The Government continues that the power to administer the Act is vested in an impartial and independent board known as the Public Service Employee Relations Board. The board is given exclusive authority to make the final decisions in matters arising out of the normal operation of the Act, an authority previously held by a minister of the Government. This system, added the Government, ensures long-term protection of employee interests. The powers of this five-member quasi-judicial board include powers to conduct hearings and investigations, issue certificates covering bargaining rights of trade unions, appoint mediators and arbitration boards, and inquire into and issue directives with respect to unfair labour practices.
13. 526. The Government continues that the authority of the Public Service Employee Relations Board, although extensive, is ultimately subject to the important jurisdictional considerations underlying the Act itself. The Alberta Public Service Employee Relations Act is designed to streamline and rationalise certain structural aspects of a very specific relationship that exists between a single Canadian provincial government and its employees, Regardless of the similarities that may exist in facilities operated by more local levels of government, the Act deliberately avoids infringing upon the jurisdictions of these levels of government. The limited scope in the health care industry for example is a direct result of the desire to recognise the role of other levels of government in this industry. The Government states that it was never intended that the Act provide an over-all collective bargaining framework for any particular industry. According to the Government, the Act also carefully avoids infringing upon activity in the private sector. The Act is designed to operate only in the unique provincial government public service environment.
14. 527. The Government contends that the traditional internal autonomy of Alberta public colleges and universities, with respect to relations between the institution and its academic staff, has also been respected. The untypical environment of such educational institutions has combined with the quite naturally different collective bargaining needs and expectations of the highly trained and diversified staff to produce qualitatively unique and functional relationships. These relationships include longstanding agreements and understandings which continue to influence the conduct of the parties. The Act acknowledges the role and importance of these arrangements and avoids interfering with them.
15. 528. According to the Government, the new legislation also addresses the very difficult problem of dispute resolution in the public sector. The provisions of the Act reflect the conviction of Alberta provincial legislators that normally acceptable private sector conflict-oriented dispute resolution techniques are not suitable in the public sector context.
16. 529. The Act provides a system of adjudication for the resolution of disputes during the term of an agreement, and both mediation and arbitration mechanisms are available for use at appropriate points in the process of actual negotiation. The procedural apparatus associated with the operation of these mechanisms is clearly defined under the Act. Where differences arise with regard to the operation of this apparatus, the decision of the Public Service Employee Relations Board is final and binding.
17. 530. The Government continues that if the parties are unable to resolve differences arising in the bargaining process they may, as previously noted, make use of the arbitration process to resolve outstanding matters. Clarification with regard to arbitrable items has thus been dealt with in the Act as part of the over-all rationalisation of the dispute resolution apparatus most topics likely to arise during collective bargaining may be referred to arbitration, the only exceptions being the limited range of items relating to employer functions and responsibilities not considered appropriate for determination in a third party provincial public service dispute resolution process. In order to continue to adequately fulfil its responsibilities to the public, the Government considered it proper that it ensure perpetuation of its existing decision-making flexibility with respect to workforce size, organisation and allocation. When an interpretation respecting the arbitrability of any particular issue is required, the final authority rests with the Public Service Employee Relations Board.
18. 531. In general, the Government points out that the Public Service Employee Relations Act deals essentially but not exclusively with three important aspects of the legislative foundations of the relationship between the Government of Alberta and provincial public employees. It reaffirms basic employee rights to organise and associate, it provides a functional administrative apparatus designed to operate under the authority of an appropriate quasi-judicial body, and it provides mechanisms for dispute resolution in the public sector. The Act addresses in a positive and constructive manner the long-term difficulties imposed by the unique provincial public sector environment while acknowledging and respecting certain longstanding and effective bargaining relationships.

B. B. The Committee's conclusions

1. 532. The Committee notes that the promulgation of the Public Service Employee Relations Act was an attempt to consolidate a number of existing legislative enactments covering provincial public employees including the Alberta Labour Act, 1973, the Crown Agency's Employee Relations Act and the Public Service Act. The new legislation had been preceded by a study of the labour relations situation in the public service by a Task Force comprising government and trade union representatives. As the Government points out, although the Task Force produced several mutually acceptable recommendations, the general lack of consensus in Canada was reflected in the separate recommendations issued by the two groups comprising the Task Force.
2. 533. The resultant enactment, the Public Service Employee Relations Act, which came into force on 22 September 1977, has given rise to the present complaints which fail under four main heads: (l) that the new Act places a general prohibition on strikes by public employees and imposes heavy penalties in the event of strikes taking place; (2) that the Act discriminates between certain categories of public employees who because they are brought within the scope of the new Act are denied the right to strike, and other public employees who because they are not covered by the new Act retain the right to strike under other legislation; (3) that the Act excludes certain items from the scope of collective bargaining; and (4) that one result of the Act is to remove the right of academic staff to choose whether or not they wish to bargain collectively. The Committee will examine these allegations separately.
3. 534. Sections 93 and 94 of the Public Service Employee Relations Act place a general prohibition on strikes and lockouts and section 95 imposes a fine of not more than $10,000 for breach of these provisions. In this connection, the Committee has in a number of previous cases pointed out that recognition of the principle of freedom of association in the case of public officials does not necessarily imply the right to strike. The Committee has also stressed the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; it is also pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented. The Committee notes that the Act provides for mediation, adjudication and arbitration in the event of disputes. No allegations have been made regarding the adequacy of this procedure.
4. 535. As regards publicly-owned undertakings, the Committee has pointed out that it would not appear to be appropriate for all publicly-owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because they interrupt and may cause public hardship and those which are not essential according to this criterion. In one case, for example, the Committee considered that it was not established in a satisfactory way that the Mint, the government printing service and the state alcohol, salt and tobacco monopolies constitute genuinely essential services according to the criterion expressed above. The Committee in this case considered that, although it might be said that a stoppage of work by the workers concerned in these undertakings could cause public inconvenience, it did not appear possible to consider that it could bring about serious public hardship.
5. 536. The Committee would also point out that the Labour Relations (Public Service) Convention adopted by the International Labour Conference at its 64th Session (June 1978) does not deal with the question of the right to strike.
6. 537. The Committee notes that a certain number of government undertakings are excluded from the scope of the Public Service Employee Relations Act (the telephones commission, the educational communications corporation, railway corporation, etc.). One undertaking to which the complainants referred is the Alberta Liquor Board, the employees of which are prohibited from striking under the new Act. Having regard to the principles and considerations stated above, the Committee would suggest that the Government consider the possibility of introducing an amendment to the legislation so that in cases where strikes are prohibited in certain undertakings these undertakings should be confined to services which are essential in the strict sense of the term.
7. 538. As regards the second problem raised by the complainants, it is alleged that the Act discriminates between different categories of public servants in that those covered by the new Act do not enjoy the right to strike whereas others, who are not brought within the scope of the Act, continue to enjoy this right under other legislation.
8. 539. In this connection, the Committee has taken note of the Government's explanation that the new Act deliberately avoids infringing upon the jurisdictions of more local levels of government, regardless of the similarities that may exist in the facilities operated by these levels of government. The limited scope in the health care industry for example, states the Government, is a direct result of the desire to recognise the role of other levels of government in this industry. The Committee also notes the Government's statement that it was never intended that the Government provide an over-all collective bargaining framework for any particular industry.
9. 540. The Committee considers that the Public Service Employee Relations Act, in so far as it excludes from its scope certain categories of public employees who continue to enjoy more favourable provisions under other legislation, does not infringe trade union rights.
10. 541. The third aspect of the complaints concern the alleged exclusion of certain matters from the scope of collective bargaining. The Committee notes that section 48 of the Act, to which the complainants have referred in this connection, in fact provides that an arbitral award may only deal with those matters that may be included in a collective agreement but that certain matters may not be referred to arbitration, namely: (a) the organisation of work, the assignment of duties and the determination of the number of employees of an employer; (b) the systems of job evaluation and the allocation of individual jobs and positions within the systems; (c) the selection, appointment, promotion, training or transfer; and (d) pensions. The provision in question would not, in the view of the Committee, appear to exclude the possibility of bargaining on these matters. The Government for its part has explained that it considered that certain items were not appropriate for determination by a third party arbitration process, and that it considered it proper to ensure perpetuation of its existing decision-making flexibility with respect to the items in question.
11. 542. The Committee understands that, although collective bargaining may take place on the items thus excluded from referral to arbitration, in the event of failure to reach agreement on these matters - certain of which relate directly to conditions of employment of public employees - the Government may decide unilaterally on these matters. Public employees covered by the Act, therefore, who are also deprived of the right to strike, are unable to seek to have such matters determined by arbitration. The Committee would point out that there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and such matters should not be regarded as outside the scope of collective bargaining conducted in an atmosphere of mutual faith and trust.
12. 543. The Committee would accordingly recommend the Governing Body to request the Government, in the light of the foregoing principles and considerations, to consider the possibility of extending the scope of matters that may be referred to arbitration so as to include those matters specified in section 48(2) of the Public Service Employee Relations Act which relate directly to conditions of employment of public employees.
13. 544. As regards the fourth aspect of the complaint concerning academic staff, the Committee notes that such workers, both in colleges and universities, are not covered by the new legislation and that they are furthermore specifically removed from the ambit of the Alberta Labour Act, 1973. The Committee also notes in this connection that the new Act reflects neither the recommendations of the government group nor those of the trade union group of the Task Force, both of which groups wished, in effect, to see the collective bargaining status of such workers clearly defined.
14. 545. The Committee recommends the Governing Body to request the Government to supply information concerning the right to organise of academic staff members of colleges and universities, the right of such workers to engage in collective bargaining for the purpose of determining the terms and conditions of employment, and the machinery available for the settlement of disputes.

The Committee's recommendations

1. 546. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (i) to draw attention to the principles and considerations contained in paragraphs 534 to 536 above concerning the right to strike in the civil service and in essential services and to suggest that the Government consider the possibility of introducing an amendment to the Public Service Employee Relations Act so that, in cases where strikes are prohibited in certain undertakings, the latter should be confined to services which are essential in the strict sense of the term;
   • (ii) to draw attention to the principles and considerations contained in paragraphs 541 and 542 above concerning the scope of collective bargaining and to request the Government to consider the possibility of extending the scope of matters that may be referred to arbitration so as to include those matters specified in section 48(2) of the Public Service Employee Relations Act which relate directly to conditions of employment of public employees;
   • (iii) to request the Government to supply information concerning the right to organise of academic staff members of colleges and universities, the right of such workers to engage in collective bargaining for the purpose of determining the terms and conditions of their employment, and the machinery available for the settlement of disputes; and
   • (iv) to take note of this interim report.